Subject_1 EXHIBITION AD DELIBERANDUM. Subject_2 SECT. III.
What writs may be called for.
Rachel Maxwell and her Husband, v. Maxwell
Date: 22 December 1675 Case No. No 32.
Exhibition ad deliberandum not sustained for producing writs made by a defunct to strangers, unless they were lying by the defunct, or assigned to the heir apparent.
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Rachel Maxwell pursues reduction and improbation against Mr Hugh Maxwell, upon this title, that the lands of Dalswinton having recognosced by a disposition made by John Maxwell, Sir Robert Dalzell got a gift of the recognition from the Exchequer, and gave a back-bond obliging him “ to apply the benefit of the gift, over and above the expenses of the gift, and the sums due to himself, to John Maxwell's creditors, and the superplus to his wife and children by sight of the Exchequer.” Yet thereafter Mr Hugh Maxwell being intrusted for his wife, John Maxwell's eldest daughter, and for Sarah Maxwell her sister, had procured a discharge of that back-bond, and had procured a new back-bond to be received by the Exchequer, altering the first back-bond, and declaring that Rachel Maxwell, the second daughter, should have only the benefit of 2000 merks; whereupon Mr Hugh Maxwell, by right from the donatar, is infeft with that burden; and therefore Rachel craves that the posterior back-bond, and Mr Hugh's infeftment following thereupon, be reduced. There is also in this process a declarator, “That the pursuer hath right to the half of the estate, with the burden of the debts and gift.” —The defender alleged no process, because all parties having interest were not called, viz. the wife and children of John Maxwell, who by the back-bond had right as well as the pursuer.
The Lords found, That as to the improbation and reduction, there was no necessity to call the relict and children of John Maxwell, it being only for removing the second back-bond, which was to all their prejudices; but as to the declarator, ‘that the pursuer had right to half of the lands,’ declared, That when they should insist in that member of the libel, they would consider the defence, in respect that the proportioning of the interest could not be discussed without calling the relict, Mr Hugh's wife, and the heir of the other daughter.
The said Rachel did also insist against Mr Hugh in an exhibition ad deliberandum, wherein the Lords ordained the defender to depone upon all writs granted in favour of the defunct, or granted by him in favour of his wife, children, or other persons in his family, or in favour of any other, “ if they were retired and lying by the defunct the time of his decease,” because then they were his writs, and were equivalent to renunciations or discharges of the retired rights; but would not sustain the exhibition for writs made to strangers, and assigned to the defender, who is an apparent co-heir, upon presumption that they might have been retired by the defunct, unless it were proven that they were truly retired.
